On July 14, 2013, NELA joined AARP in filing an amicus brief supporting Carl Summers, a contract statistician with Altarum Institute Corp. who sustained serious injury to both legs in an October 2011 accident, in his appeal to the U.S. Court of Appeals for the Fourth Circuit. Mr. Summers was terminated in December 2011 while recuperating from these injuries despite properly requesting an accommodation under the federal disability laws. Amici address several aspects of disability law not analyzed with clarity or precision by the district court, including the significance of enactment of the ADA Amendments Act of 2008 (ADAAA) as well as the issuance of revised regulations by the U.S. Equal Employment Opportunity Commission (EEOC) regarding the status of non-permanent medical conditions. In particular, the district court failed to analyze properly whether Summers was “substantially limited” in a “major life activity,” and whether Altarum “failed” to “reasonably” accommodate his injuries.

Due to his October 2011 injuries, Mr. Summers asked to work from home during the seven to twelve months doctors estimated would be required for him to recuperate fully and gradually return to his work site. Altarum terminated Mr. Summers while he was still on short-term disability leave as of December 1, 2011.

The district court improperly ruled that a clearly disabled employee has no “disability” covered by the ADA, and dismissed his discrimination case at the pleading stage without reviewing his claims of unlawful bias. The court relied on decisions and regulations predating enactment of the ADAAA as well as the issuance of revised regulations by the EEOC regarding the new legislation. In particular, the status of non-permanent medical conditions was significantly changed by the ADAAA and the new EEOC rules. Amici argue that the district court erred in concluding that Summers’ claim of disability was foreclosed because his alleged impairments were not permanent and were expected to heal within a year. In doing so, the district court failed to apply ADAAA standards contained in the ADAAA itself as well as in EEOC regulations and guidance with regard to Summers’ limitations, and also failed to look at them without regard to “mitigating measures” undertaken by Summers. These standards differ greatly from those in force prior to 2009. The district court also erroneously considered Summers’ alleged impairments largely in terms of their limitation of Summers in the major life activity of “working,” rather than “walking,” which was the focus of Summers’ Complaint, and the focus of his briefing and oral argument opposing the motion to dismiss.

Amici also address the alternative grounds invoked to dismiss Summers’ reasonable accommodation claim. The district court suggested this claim rested solely on the failure of Altarum “to engage in [the] interactive process,” and in so doing, ignored settled law that an employer’s failure to respond to accommodation requests is unjustified unless it is shown that no accommodation is possible.

Finally, we argue that the legal hurdles erected by the district court are improper at this pleadings stage of an ADA case and clash with Congressional intent recited in the ADA. The questions the court resolved to grant dismissal—whether Summers is “substantially limited” in a “major life activity,” and whether Altarum “failed” to “reasonably” accommodate his injuries—are fact issues that should be decided on a full evidentiary record at summary judgment or trial.

You may read NELA’s amicus brief in Summers v.Altarum Institute Corp. on The NELA Exchange. NELA Vice President of Public Policy Daniel B. Kohrman (AARP Foundation Litigation, Washington, DC) served as lead author on the brief, and NELA Executive Board Member Brian East (Disability Rights Texas, Austin, TX) and NELA Program Director Rebecca Hamburg Cappy reviewed the brief and provided input. Mr. Summers is represented by NELA members R. Scott Oswald and David L. Scher (The Employment Law Group, Washington, DC).